Federal judge says there may still be a constitutional right to abortion: report
07 February 2023
A Washington, D.C. federal judge is exploring a different perspective of the U.S. Constitution, suggesting Americans may have a constitutional right to receive abortions based on a clause in the 13th Amendment, Politico reports.
On Monday, February 6, U.S. District Court Judge Colleen Kollar-Kotelly made the suggestion as part of a criminal case involving anti-abortion activists.
Per Politico:
"The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization concluded only that the 14th Amendment included no right to abortion but stopped short of definitively ruling out other aspects of the Constitution that might apply."
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Kollar-Kotelly noted it "is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised,” but added the possibility "was not raised" during those arguments. The judge, Politico reports, noted the 13th Amendment — which was ratified in 1865, and abolished slavery and “involuntary servitude” — could actually provide a constitutional right to abortion, according to some legal scholars.
In an op-ed for the Hill, legal scholar Andrew Koppelman argued that with the ratification of the 13th Amendment, a "bundle of wrongs" were also tossed aside. Included in that category was "compulsory pregnancy."
"The 13th Amendment outlaws the whole bundle," the analysis highlighted. "The Supreme Court has held that, for example, it empowers Congress to prohibit racial discrimination in housing, because such discrimination is a relic of slavery. [Racial discrimination in housing] doesn’t enslave anyone, but it is a fundamental part of the institution that the amendment abolishes."
Although many pro-lifers argue the Constitution includes no verbiage about abortion, the analysis also notes a compelling comparison to slavery and why it was abolished: Women's "bodily powers were seized, in the intrusive and degrading way that is unique to unwanted pregnancy, and directed to the end of producing children," Koppelman explained.
READ MORE: Anti-abortion Republicans have 'learned nothing' from their midterms disappointments: columnist
As Politico reports, Kollar-Kotelly is overseeing a case "against 10 defendants, who are charged with conspiring to block access to a Washington, D.C., abortion clinic." The judge "is asking the parties in the criminal case" to "address 'whether the scope of Dobbs is in fact confined to the Fourteenth Amendment' and 'whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter.'"
Lauren Handy, a defendant in the criminal case, is arguing that "the conspiracy charge is no longer legitimate because the Dobbs decision took Congress out of the business of making laws related to abortion access," the news outlet highlighted.
“There is no longer a federal constitutional interest to protect, and Congress lacks jurisdiction,” Handy’s attorneys wrote. “The Dobbs court did not indicate that there is no longer a constitutional right to abortion; the court has made clear there never was.”
“The Constitution does not confer a right to abortion,” Justice Samuel Alito previously insisted in the majority opinion for the Dobbs case.
However, Kollar-Kotelly is suggesting a different perspective.
“The ‘issue’ before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right,” she wrote. “That is why neither the majority nor the dissent in Dobbs analyzed anything but the Fourteenth Amendment. In fact, on the Court’s initial review, not a single amicus brief mentioned anything but the Fourteenth Amendment and the unratified Equal Rights Amendment.“